Academic round-up

Posted Fri, June 3rd, 2011 10:30 am by Amanda Frost

The Supreme Court is scheduled to hear two cases next Term on the question whether whether a criminal defendant is entitled to a remedy for defense counsel's inadequate performance during plea bargaining if the defendant ultimately enters a voluntary, knowing, and intelligent plea, or if the defendant is convicted after a fair trial.

In Lafler v. Cooper, the court of appeals held that defense counsel was ineffective for counseling Cooper to reject a plea bargain in the mistaken belief that Cooper could not be convicted of assault with intent to murder. (Oddly, defense counsel believed that because the bullets entered the victim's body below the waist, the state could not prove intent to kill. As the Sixth Circuit dryly noted, "[c]ounsel was wrong.") Cooper was convicted at trial and he received a sentence approximately ten times longer than the plea offer. The prosecution argued that because Cooper received a fair trial, he has no Sixth Amendment claim for ineffective assistance at the plea bargaining stage.

In Missouri v. Frye, defense counsel failed to inform his client of the prosecution's plea offer of 10 days in jail. Frye eventually entered a guilty plea and was sentenced to three years of incarceration. As in Cooper, the prosecution asserts that a defendant has no remedy for ineffective counsel at the plea bargain stage in a case in which the defendant ultimately enters into a voluntary, knowing, and intelligent guilty plea.

Some interesting recent scholarship addresses hard questions about plea bargaining"”a subject that has gotten more attention since the Court held in Padilla v. Kentuckythat defense counsel has a constitutional obligation to inform a defendant of the "succinct, clear, and explicit" immigration consequences of pleading guilty. Professor Jenny Roberts, whose thoughtful scholarship on these questions was cited by the Supreme Court in Padilla, has just posted an article on SSRN arguing that the "prejudice" prong of the two-pronged ineffective assistance of counsel test must expand to accommodate the reality that most cases end in a guilty plea, not a trial. Professor Roberts criticizes those courts that view prejudice entirely through the lens of trials"”for example, by finding prejudice only if the defendant would have opted to go to trial had he been properly advised at the plea bargaining stage. Roberts argues that prejudice also exists if the defendant would likely have negotiated for a better deal had he been privy to the relevant information, as would be true in Missouri v. Frye. Professor Roberts concludes that this broader conception of "prejudice" better accords with a criminal justice system in which plea bargains are the norm, and trials the rare exception.

In an article to be published in the California Law Review, Professor Stephanos Bibas addresses similar questions and, like Professor Roberts, concludes that courts must be careful not to view trials as the norm when analyzing counsel's performance at the plea bargaining stage. According to Bibas, courts and legislatures would do better to look outside criminal law altogether when thinking about plea bargaining, and should instead refer to consumer protection law as a source of guidance. Consumers benefit from legislation that mandates disclosure of relevant information, bars misleading sales tactics, and provides for "cooling off" periods during which a buyer has a limited amount of time to rescind a purchase. Professor Bibas advocates similar protections for criminal defendants facing the all-important question of whether to accept a plea. He notes that it "is astonishing that a $100 credit-card purchase of a microwave oven is regulated more carefully than a guilty plea that results in years of imprisonment."

Finally, Professor Bibas makes the interesting claim that the addition to two former prosecutors to the Court "“ Justices Alito and Sotomayor "“ may have inspired the Court to take a more realistic approach to plea bargaining.

Merits Case Pages and Archives

The court issued additional orders from the December 2 conference on Monday. The court did not grant any new cases or call for the views of the solicitor general in any cases. On Tuesday, the court released its opinions in three cases. The court also heard oral arguments on Monday, Tuesday and Wednesday. The calendar for the December sitting is available on the court's website. On Friday the justices met for their December 9 conference; Honeycutt v. United States.

Major Cases

Gloucester County School Board v. G.G.(1) Whether courts should extend deference to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought; and (2) whether, with or without deference to the agency, the Department of Education's specific interpretation of Title IX and 34 C.F.R. § 106.33, which provides that a funding recipient providing sex-separated facilities must “generally treat transgender students consistent with their gender identity,” should be given effect.

Bank of America Corp. v. City of Miami(1) Whether, by limiting suit to “aggrieved person[s],” Congress required that a Fair Housing Act plaintiff plead more than just Article III injury-in-fact; and (2) whether proximate cause requires more than just the possibility that a defendant could have foreseen that the remote plaintiff might ultimately lose money through some theoretical chain of contingencies.

Moore v. Texas(1) Whether it violates the Eighth Amendment and this Court’s decisions in Hall v. Florida and Atkins v. Virginia to prohibit the use of current medical standards on intellectual disability, and require the use of outdated medical standards, in determining whether an individual may be executed.

Pena-Rodriguez v. ColoradoWhether a no-impeachment rule constitutionally may bar evidence of racial bias offered to prove a violation of the Sixth Amendment right to an impartial jury.

Conference of December 9, 2016

FTS USA, LLC v. Monroe (1) Whether the Fair Labor Standards Act and the Due Process Clause permit a collective action to be certified and tried to verdict based on testimony from a small subset of the putative plaintiffs, without either any statistical or other similarly reliable showing that the experiences of those who testified are typical and can reliably be extrapolated to the entire class, or a jury finding that the testifying witnesses are representative of the absent plaintiffs; and (2) whether the procedure for determining damages upheld by the Sixth Circuit, in which the district court unilaterally determined damages without any jury finding, violates the Seventh Amendment.

Overton v. United States Whether, consistent with this Court's Brady v. Maryland jurisprudence, a court may require a defendant to demonstrate that suppressed evidence “would have led the jury to doubt virtually everything” about the government's case in order to establish that the evidence is material.

Turner v. United States (1) Whether, under Brady v. Maryland, courts may consider information that arises after trial in determining the materiality of suppressed evidence; and (2) whether, in a case where no physical evidence inculpated petitioners, the prosecution's suppression of information that included the identification of a plausible alternative perpetrator violated petitioners' due process rights under Brady.